Paul Knights, R (on the application of) v South Norfolk District Council

The Deputy Judge (Neil Cameron KC): Introduction

1. In this case Mr. Paul Knights (“the Claimant”) applies for an order to quash the decision made by South Norfolk District Council (“the Defendant”) to grant planning permission to develop land west of Village Farm, Kings Dam, Gillingham, Norfolk (“the Site”) by the erection of a self-build two storey residential dwelling.

2. In an order dated 19 th February 2025 HH Judge Jarman KC granted the Claimant’s application for an extension of time, and refused permission to apply for judicial review. At an oral renewal hearing on 1 st April 2025 Tim Smith granted permission to proceed on Ground 1, and refused permission on all other grounds. The Background Facts

3. The Interested Parties applied for planning permission to develop the Site by erecting a two storey dwelling (“the 2024 Planning Application” and “the Proposed Development”). The 2024 Planning Application was supported by a Planning Statement. Paragraph 6.13 of that Planning Statement includes the following: “The proposal comprises of the addition of a single dwelling similar in size to that previously subject to outline planning approval as demonstrated by the indicative site layout plan could be provided whilst retaining adequate separation to the existing dwelling at Gillingham to avoid any significant harm to amenity by way of loss of outlook, overbearing impact, or loss of privacy. A single dwelling development will not give rise to unacceptable losses of daylight, sunlight or cause unreasonable overshadowing of neighbouring private open space areas. The development will provide adequate internal amenity for future occupiers, through the provision of a generous front and rear scheduled private garden areas, complying with the requirements of policy DM 3.13.”

4. The Claimant lives at The Spinney, 8 Kings Dam, Gillingham (“The Claimant’s Property”). The Claimant’s Property lies immediately to the west of the Site. The Claimant instructed Right Of Light Consulting (“ROLC”), chartered surveyors, to undertake an assessment of the impact of the Proposed Development on the daylight and sunlight enjoyed by the Claimant’s Property.

5. In a letter dated 3 rd July 2024 (“the First ROLC Report”) ROLC wrote to the Defendant setting out their views on the impact of the Proposed Development on the daylight and sunlight enjoyed by the Claimant’s Property. That letter included the following: “… We have applied the numerical tests laid down in the Building Research Establishment (BRE) "Site Layout Planning for Daylight and Sunlight 2022, 3 rd Edition. The tests were undertaken using Right of Light Consulting's 3D point cloud survey undertaken with a Lecia RTC Scanner on 13th June 2024. We have attached our 3D images of the development and our clients property, photographic window key, overshadowing plots for the garden along with the relevant daylight and overshadowing results. The results confirm that the proposed development will have a very significant negative impact on our clients and their home. The assessment methodology and results are expanded upon below. … In our opinion, the main windows for our clients living room are located on the side elevation of their property. The combined size of these windows, along with their current very high levels of daylight, are critical to the provision of natural light within the living room. This is because the living room is a very deep room and heavily relies on light from the side elevation to maintain sufficient natural light to its central and main portion. The front window is heavily obstructed by the properties original garage building. Whilst the rear window is heavily restricted by a number of mature trees. The 'before' development results confirm that the side elevation windows receive significantly more light than the front and rear elevations which confirms their primary importance. Analysis Both windows 2 & 3 which serve the living room significantly fail the Vertical Sky Component test. The proposed development would reduce the Vertical Sky Component from 37% and 36.7% down to 16.1% and 12.6% for windows 2 & 3 respectively. This is very significantly below the BRE's twofold recommendation of 27% VSC combined with no greater reduction of more than 20% of its formerly enjoyed value. These figures represent a 56% and 66% reduction in formerly enjoyed light levels. In our opinion this amounts to a very harmful impact. The results also confirm that the garden will be overshadowed. This amounts to a loss of sunlight to approximately 16.15 m2, the majority of which is located to the rear patio area. This can be best visualised by referring to our Overshadowing diagram's attached to this letter. … Conclusion Given the very significant reduction in natural light, sense of enclosure and overdevelopment of the site, we respectfully request that the application be refused. If the applicants appoint their own expert, we would be pleased to share with them our survey data and 3D model for their independent review, or to facilitate any site surveys of their own. Also, if you would like to visit our clients property to better visualise the situation, our clients would welcome a meeting. Thank you for considering our clients concerns. We appreciate your judgement of these important matters and your commitment to ensuring the well-being and quality of life for all residents in the community.”

6. In an email dated 9 th July 2024 the Interested Parties wrote to the Defendant. In that email the Interested Parties included the following response to the First ROLC Report: “… To directly respond to the points raised; • The diagrams don't indicate any distances between the proposed dwelling and 'The Spinney' which could lead to incorrect information being applied • The results appear to have been calculated with the proposed dwelling in the wrong location. (refer to attached screenshots) • The data provided cannot be confirmed as factual as there is no evidence that the software and/or equipment used are calibrated to be accurate. • With regards to the overshadow of their garden (which is North facing) the sun travels a constantly variable arc during each and every day therefore the figures cannot be considered as accurate. • Window 3 is already heavily blocked by a tree. • The reference to the road entrance concerns is incorrect (Highways didn't have any objection) as the existing driveway width would be extended creating a single open driveway in front of the wall. We are of course mindful of the neighbours (sic) concerns regarding this application but i t is considered that the dwelling is positioned in the most suitable location and that there will not be a negative impact on the neighbouring dwelling. …”

7. In a letter dated 10 th September 2024 (“the ROLC Rebuttal Report”) ROLC responded to the Interested Parties’ email dated 9 th July 2024. The ROLC Rebuttal Report included the following: “… Diagrams and Distance Measurements The developer's assertion that our diagrams lack distance measurements is unfounded. We used the Building Research Establishment's (BRE) "Site Layout Planning for Daylight and Sunlight" (2022, 3rd Edition), which is a well-established and industry-standard methodology. The diagrams and overshadowing plots provided were generated from a 3D point cloud survey conducted with high-precision Lecia RTC equipment. This includes detailed spatial data that ensures accuracy. Furthermore, the distance between the proposed development and The Spinnery was accounted for in all the calculations we submitted. These diagrams and measurements are reliable, with precise distances being derived from professional survey data. Alleged Misplacement of the Proposed Development in the Survey The claim that the proposed development was incorrectly placed in our assessment is incorrect. As professionals in the field of daylight analysis, we took great care to ensure the accurate placement of the proposed structure in our 3D model based on site-specific data. If the developer believes there is an error, we would invite them to provide their evidence to demonstrate this alleged misplacement. We stand by the accuracy of the data and can make the underlying 3D model available for comparison with the applicant's plans. Calibration of Software and Equipment … These tools are regularly calibrated to ensure accuracy, and the results are reviewed by qualified professionals. The applicant has provided no evidence to support their suggestion that the equipment is faulty, and we would welcome any formal third-party verification of our data should they wish to challenge it. Sunlight and Overshadowing of the North-Facing Garden … In this case, the overshadowing calculations were based on the BRE's recommended methodology for assessing sunlight availability on the spring equinox (21 st March), which is the standard approach. … Tree Blocking Window 3 The developer refers to a tree blocking Window 3 and implies that this justifies the reduction in daylight. While there is some existing obstruction, the proposed development significantly exacerbates the issue by further reducing the Vertical Sky Component (VSC) for this window from 36.7% to just 12.6%. The tree does not mitigate the impact of the development. Instead, it highlights the importance of preserving what limited daylight the property currently enjoys, which will be severely curtailed by the proposed structure. Conclusion In conclusion, the arguments presented by the developer do not address the core issues raised in our objection. The proposed development will result in a significant reduction of daylight to the main living areas of The Spinnery and cause considerable overshadowing of the garden, particularly in critical areas like the patio. Additionally, the concerns regarding the road access have not been adequately addressed. For these reasons, we continue to request that this application be refused. We remain open to sharing our data with the developer's experts and welcome any further discussion or site visits you deem necessary. Thank you for your continued attention to this important matter.”

8. On 16 th September 2024 the Claimant wrote to the Defendant’s planning case officer inviting her to visit his property. On 26 th September 2024 the Defendant’s planning officer responded to the Claimant’s email saying that she had already visited the site and taken photographs and that it would not be necessary for her to visit the site again.

9. In a letter dated 26 th September 2024 the solicitors instructed by the Claimant submitted a letter of objection to the 2024 Planning Application. The solicitors said that their letter was intended to supplement the First ROLC Report.

10. The power to determine the 2024 Planning Application was delegated to the Defendant’s planning officer. The case officer prepared a report (dated 22 nd November 2024) (“the OR”) for consideration by the officer exercising the delegated powers.

11. The OR included the following: “… Impact on Neighbour Amenity Policy DM3.13 of the SNLP relates to the protection of the amenity of neighbouring uses. Whilst the proposal is of two-storey nature, this is of a typical built form, size, and footprint to the surrounding dwellings and is setback from the highway, reducing its visual impact and prominence in the street scene. This new dwelling also has a sufficient distance to the boundaries on both the east and the west of the property, and as such this will not cause any overbearing impacts on neighbouring amenity and is acceptable. With regard to overshadowing, this proposal is seeking to use a hipped roof and therefore the eaves height is lower on all elevations of the property. In addition to this, there is a gap between the boundary and the proposed dwelling on the boundaries and therefore is not in close proximity to any neighbouring properties. Therefore, the risk of overshadowing is reduced and is minimal, thus is acceptable. It is noted that the neighbour adjacent to the proposal site has conducted a right to light survey to identify the potential overshadowing from the erection of the dwelling. This survey has however based the footprint of the dwelling on the boundary whereas the plans show there to be a distance of 1.5 metres between the boundary and the proposed dwelling. Given the distances involved, it is considered that there will be a suitable distance separating the two without causing a significant detrimental impact on overshadowing of the neighbouring property. … Conclusion In conclusion, this application has been assessed in the context of policies in the South Norfolk Local Plan and policy 7.5 of the Greater Norwich Plan that gives weight to considerations regarding self-build and custom-build dwellings. In this context, the application is considered acceptable in principle, design considerations are acceptable in the character of the area, and there will not be any adverse impacts on neighbouring amenity, highway safety, or ecology as a result of this proposal. As such, this proposal complies with the policies listed above from the South Norfolk Local Plan, the Greater Norwich Local Plan, and the National Planning Policy Framework. In light of the above, and subject to the imposed conditions below, the application is therefore recommended for approval. …”

12. By a decision notice dated 22 nd November 2024 the Defendant granted planning permission for the Proposed Development. The Grounds of Challenge

13. The Claimant challenges the Defendant’s decision on the following ground: “1) The decision was taken without taking into account all material considerations: there is no mention whatsoever in the OR of the Claimant's expert’s rebuttal report (dealing robustly with lay comments made by the applicants in response to the initial report), nor is there any analysis which would indicate that it had been taken into account and engaged with. Specifically, the OR a. Ignored the plotting of the buildings (which was correct in the Claimant's reports); b. Ignored the serious light impacts despite the calculations which were based on precision instruments and well established analysis; c. Ignored the rebuttal report.” The Legal Framework

14. Section 70 of the Town and Country Planning Act 1990 (“ TCPA 1990 ”) provides: “… (2) In dealing with an application for planning permission or permission in principle the authority shall have regard to— (a) the provisions of the development plan, so far as material to the application, … (c) any other material considerations.”

15. Regulation 7 of the Openness of Local Government Bodies Regulations 2014 (“the 2014 Regulations”) provides that a decision making officer making a delegated decision must produce a written record of the decision along with the reasons for the decision. Regulation 7 applies to decisions made under delegated powers to grant planning permission ( R (Shasha) v Westminster City Council [2017] PTSR 306 at paragraph 27). General Principles on Judicial Review

16. The general principles applicable were summarised by Lang J in R (Suliman) v. Bournemouth, Christchurch and Poole Council [2022] EWHC 1196 (Admin) at paragraph 32: “32. In a claim for judicial review, the Claimant must establish a public law error on the part of the decision-maker. The exercise of planning judgment and the weighing of the various issues are matters for the decision-maker and not for the Court: Seddon Properties Ltd v Secretary of State for the Environment (1981) 42 P & CR 26. A legal challenge is not an opportunity for a review of the planning merits : Newsmith v Secretary of State for the Environment, Transport and the Regions [2001] EWHC 74(Admin).”

17. Matters of planning judgment are for the decision maker. In Grafton Group (UK) PLC v. Secretary of State [2016] EWCA Civ 561 at paragraph 30, Laws LJ (with whom the other members of the Court of Appeal agreed) considered the extent and ambit of the court’s powers when considering matters of planning judgment: “30. The starting-point for consideration of Ground 2 is the well known dictum of Lord Hoffmann in Tesco Stores Ltd [1995] 1 WLR 795 at paragraph 57: “If there is one principle of planning law more firmly settled than any other, it is that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State”. But this does not absolve the decision-maker of the need to act on evidence. If it did, planning cases would possess a characteristic unique in the public law sphere: they would be unconstrained by the discipline of the Wednesbury rule ( [1948] 1 KB 223 ). Plainly that is not the case. There must be evidence to provide the factual materials upon which the planning decision-maker will form his conclusions. His view of the question whether the material before him is or is not adequate for that purpose lies within the scope of his planning judgment; and so – of course – does his conclusion as to the planning outcome or outcomes. To that extent the familiar concept of planning judgment may be said to involve two stages: sufficiency of the evidence and conclusion on the merits. No doubt they merge in practice. Lord Hoffmann’s dictum applies to both, although its focus is especially directed at the latter stage, the planning outcome. Here, it is the first stage to which Ground 2 invites scrutiny. Was there material on which a reasonable decision-maker could proceed to the second stage, and thus form a conclusion that “the same throughput might be achieved with no or but a slight change to the extent of the plant and storage, but better designed and laid out” (Inspector’s Report paragraph 12.59, cf. 12.61)?” Material Considerations

18. A challenge on the basis that a decision-maker failed to take into account a material consideration can only succeed if (1) the consideration is made mandatory by the statute conferring discretion pursuant to which the decision is made; or (2) it would be irrational not to take that consideration into account on the facts of the case as it was so obviously material as to require direct consideration ( R (Samuel Smith Old Brewery (Tadcaster) v North Yorkshire County Council [2020] PTSR 221 at paragraph 32).

19. The position was summarised by Holgate J (as he then was) in R (ClientEarth) v Secretary of State for Business, Energy and Industrial Strategy [2020] P.T.S.R. 1709 at paragraph 99 (Holgate J’s judgment was affirmed by the Court of Appeal [2021] P.T.S.R. 1400): “99. In R (Samuel Smith Old Brewery (Tadcaster)) v North Yorkshire County Council [2020] PTSR 221 the Supreme Court endorsed the legal tests in Derbyshire Dales District Council [2010] 1 P & CR 19 and CREEDNZ Inc v Governor General [1981] 1 NZLR 172, 182 which must be satisfied where it is alleged that a decision-maker has failed to take into account a material consideration. It is insufficient for a claimant simply to say that the decision-maker did not take into account a legally relevant consideration. A legally relevant consideration is only something that is not irrelevant or immaterial, and therefore something which the decision-maker is empowered or entitled to take into account. But a decision-maker does not fail to take a relevant consideration into account unless he was under an obligation to do so. Accordingly, for this type of allegation it is necessary for a claimant to show that the decision-maker was expressly or impliedly required by the legislation (or by a policy which had to be applied) to take the particular consideration into account, or whether on the facts of the case, the matter was so ‘obviously material’, that it was irrational not to have taken it into account.” Officer Reports

20. The principles to be applied when a challenge is based on criticism of an officer's report to a planning committee were set out by Lindblom LJ at paragraph 42 in . The same approach is to be taken when considering a decision made under delegated powers ( Mansell v. Tonbridge and Malling BC [2017] EWCA Civ 1314 Bates v. Maldon DC [2019] EWCA Civ 1272 at paragraph 43). The court will not interfere unless there is a distinct and material defect in the officer’s advice. The Ground of Challenge

21. Ms Olley, for the Claimant, submitted: i) The absence of any mention in the OR of the ROLC Rebuttal Report means that the decision was taken without taking into account an obviously material consideration. ii) The OR contains no analysis which would indicate that the substance of the points made in the ROLC Rebuttal Report had been taken into account and engaged with.

22. In her reply, Ms Olley made plain that she was not seeking to rely on a reasons challenge.

23. Mr Thorold, for the Defendant, submitted: i) The case argued on behalf of the Claimant goes beyond the agreed list of issues. ii) It is wrong to characterise the ROLC Rebuttal Report as a material consideration. iii) Even if the ROLC Rebuttal Report was itself a material consideration it cannot be inferred that it was not taken into account. iv) To conclude that a local planning authority had failed to take account of a material consideration every time a single document was not expressly mentioned in an officer’s report would be unduly onerous.

24. Consideration of the impact of the Proposed Development on the residential amenity of adjoining home clearly serves a planning purpose as it relates to the character of the use of land. Applying the Newbury criteria ( Newbury DC v. Secretary of State for the Environment [1981] AC 578 , at pages 599-600) the impact of the Proposed Development on the residential amenity of those using the Claimant’s Property through impact on daylight and by overshadowing was a planning consideration.

25. The planning officer considered impact of the Proposed Development on residential amenity to be a relevant factor when considering the 2024 Planning Application. The planning officer included a section in the OR headed “Impact on Neighbour Amenity”. In that section the officer refers to South Norfolk Local Plan policy DM3.13. Policy DM3.13 states: “(1) Development should ensure a reasonable standard of amenity reflecting the character of the local area. In all cases particular regard will be paid to avoiding: a. … b. Loss of day light, overshadowing and overbearing impact c. … Planning permission will be refused where proposed development would lead to an excessive or unreasonable impact on existing neighbouring occupants and the amenity of the area or a poor level of amenity for new occupiers.”

26. The Defendant was under a duty to have regard to the development plan so far as material to the application ( section 70(2) (a) TCPA 1990 ). Policy DM3.13 was considered by the officer to be material. That policy required development to ensure a reasonable standard of amenity, paying particular regard to avoiding loss of day light and overshadowing. The policy also states that planning permission should be refused where proposed development would lead to an excessive or unreasonable impact on existing neighbouring occupants. As a result, when considering the 2024 Planning Application the Defendant was required to have regard to impact on the residential amenity of the Claimant’s Property as a matter of legal obligation. Alternatively, on the facts of this case, and in particular given the concerns raised by the Claimant in his representations to the Defendant, the impact of the Proposed Development on the residential amenity of the Claimant’s Property was an obviously material consideration.

27. It is clear from the OR that the Defendant did have regard to the impact of the Proposed Development on the residential amenity of the Claimant’s Property and reached a planning judgment on the acceptability of that impact. The matter in issue relates to the first stage of the planning judgment, as referred to in Grafton , namely the sufficiency of the evidence. The point in issue is whether the Defendant took into account the evidence relating to daylight and overshadowing, in particular the evidence set out in the ROLC Rebuttal Report, in coming to that judgment.

28. The question for the court is whether, on a fair reading of the OR as a whole, the officer materially misled the decision maker.

29. The OR refers to ‘overshadowing’ but not expressly to impact on daylight. Policy DM3.13(b) requires both loss of daylight, and overshadowing to be considered. The First ROLC Report addresses loss of daylight to windows 2 and 3, and overshadowing of part of the garden, of the Claimant’s Property separately. The OR must be read as a whole and with a reasonable degree of benevolence ( Mansell at paragraph 42(2)). The officer makes express reference to the right of light survey commissioned by the neighbour (being the Claimant) stating that the survey was conducted “… to identify the potential overshadowing from the erection of the dwelling”. I note that the failure in the OR to make express reference to impact on daylight is not a point taken on behalf of the Claimant. Reading the report with a reasonable degree of benevolence the reference to overshadowing in the OR must be taken to refer to the range of impacts (including impacts on daylight) referred to in the First ROLC Report.

30. When considering overshadowing the OR refers to the fact that the Proposed Development has a hipped roof and therefore the eaves height is lower on all elevations of the property. The OR then refers to the gap between the proposed dwelling and the boundary. It is on that basis that the officer says that the risk of overshadowing is reduced and is minimal, and thus is acceptable. The officer then refers to the right to light survey commissioned by the Claimant. The officer says that this survey “…based the footprint of the dwelling on the boundary whereas the plans show there to be a distance of 1.5m between the boundary and the proposed dwelling”. The officer then makes a judgment that there will not be a significant detrimental impact by way of overshadowing. That judgment was based upon a factual premise relating to distances between the Proposed Development and the boundary between the Claimant’s Property and the Site. The officer said “Given the distances involved, it is considered that there will be a suitable distance separating the two…”. The ROLC Rebuttal Report addresses the placement of the Proposed Development for the purposes of the analysis set out in the First ROLC Report. The ROLC Rebuttal Report states: i) “The developer’s assertion that our diagrams lack distance measurements is unfounded.” ii) “… the distance between the proposed development and the Spinnery was accounted for in all the calculations we submitted.” iii) The “… diagrams and measurements are reliable, with precise distances being derived from professional survey data.” and iv) “… we took great care to ensure the accurate placement of the proposed structure in our 3D model based on site-specific data.”

31. The factual basis upon which the planning judgment was reached by the officer related to distances between the proposed dwelling and the boundary between the Claimant’s Property and the Site. The ROLC Rebuttal Report addressed measurement and distances. The information in the ROLC Rebuttal Report was therefore material to the assessment undertaken by the officer, in particular the factual basis for the planning judgment made.

32. The Claimant relies upon the fact that the OR contains no express reference to the ROLC Rebuttal Report. I accept the submission made by Mr Thorold that there was no obligation to make express reference to the ROLC Rebuttal Report.

33. However the matters referred to in the ROLC Rebuttal Report, in particular the references to measurements and distances, and the statement (in the Conclusion section) that the arguments presented by the developer (in relation to distances) do not address the core issues raised in the objection (significant reduction in daylight in the living room and overshadowing of the patio), are material considerations as they go to the factual basis upon which the officer’s judgment on residential amenity issues was premised.

34. The factual foundations for the officer’s conclusion that the Proposed Development would not cause a significant detrimental impact on overshadowing of the neighbouring property were the placing of the proposed dwelling in the ROLC survey model, and the distance from the boundary. Those matters were addressed in the ROLC Rebuttal Report (as referred to at paragraph 30 above).

35. The OR failed to take the matters referred to in the ROLC Rebuttal Report into account. Those considerations were directly relevant to the factual basis on which the planning officer made her planning judgment. In my judgment that constitutes a failure to take into account material considerations. The failure to take into account those material considerations was an error of law and on that basis, and for the reasons set out above, the ground of challenge is made out. Relief

36. The Defendant seeks to rely on section 31 (2A) of the Senior Courts Act 1981 (“ SCA 1981 ”). Mr Thorold relies upon section 31 (2A) in the event that it is held that the failure to take account into the ROLC Rebuttal Report amounted to an error of law.

37. In applying section 31 (2A) the court is concerned with evaluating the significance of the error on the decision-making process. The section does not require the court to embark on an exercise of trying to predict what the public body would have done if the error had not been made. The focus should be on the impact of the error on the decision-making process that the decision-maker took ( R(Bradbury) v. Brecon Beacons National Park Authority [2024] 1 WLR 58 at paragraphs 71 and 74).

38. In applying section 31 (2A) the court must not stray into the ‘forbidden territory’ of assessing the merits of the planning authority’s decision.

39. When applying policy DM3.13 the Defendant was required to consider whether the Proposed Development would ensure a reasonable standard of amenity, and whether the Proposed Development would lead to an excessive or unreasonable impact on existing neighbouring occupants. Those questions raise issues of planning judgment. If the conduct complained of had not occurred the Defendant would have taken into account the information set out in the ROLC Rebuttal Report when exercising that planning judgment. The court cannot tell how the Defendant would have approached the issues of planning judgment which arise in this case if they had taken account of that information. In those circumstances this is not a case where it appears to the court to be highly likely that the outcome for the Claimant would not have been substantially different if the conduct complained of had not occurred. Conclusion

40. For the reasons I have given, the claim succeeds and the decision to grant planning permission is quashed.